State v. Molina

This
memorandum opinion was not selected for publication in the
New Mexico Appellate Reports. Please see Rule 12-405 NMRA for
restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum
opinion may contain computer-generated errors or other
deviations from the official paper version filed by the Court
of Appeals and does not include the filing date.

APPEAL
FROM THE DISTRICT COURT OF TAOS COUNTY Jeff Foster McElroy,
District Judge

{1}
The State appeals the district court's order granting
Defendant's motion to withdraw his plea. We reverse the
district court's decision allowing Defendant to withdraw
his plea.

I.
BACKGROUND

{2}
On October 21, 1991, Defendant was arrested and charged with
criminal sexual penetration (CSP) and false imprisonment.
NMSA 1978, §§ 30-9-11(D) (1991, amended 2009),
30-4-3 (1963). At the time, Defendant was twenty-one years
old and had been in the United States illegally for three
months. According to the criminal complaint, filed on October
23, 1991, the State alleged that Defendant and his boss
picked up two female hitchhikers and forced them to consume
alcohol. One of the victims, Cora, was between the ages of
thirteen and sixteen. The State alleged that Defendant and
his boss held the victims against their will. Based on the
criminal complaint, Defendant forcibly raped Cora. The
victims were able to escape and contact police.

{3}
Defendant's attorney, Mr. Sam B. Sanchez, testified that
he had long discussions with Defendant about the charges and
penalties involved in the case against him. Defendant told
Mr. Sanchez that he did not wish to go through the
preliminary hearing at which the alleged victim was scheduled
to testify but wanted to waive the hearing and go directly to
the district court. Shortly thereafter, on November 8, 1991,
Defendant entered into a plea agreement whereby he pled
guilty to the charges in exchange for a deferred sentence,
three years probation, and an agreement to be deported to
Mexico and not return to the United States during the term of
the probation. Defendant was transported to El Paso, Texas,
and was deported after a hearing with the Immigration and
Naturalization Service. The deportation documents provide
that Defendant must request permission to return to the
United States, and that any person who returns within five
years without permission is guilty of a felony. Subsequently,
Defendant reentered the United States illegally and was in
the country for eighteen years when he was again taken into
custody and charged with illegal entry of a previously
removed alien.

{4}
Defendant filed a Rule 1-060(B)(6) NMRA motion to withdraw
his 1991 plea, or in the alternative, a petition for writ of
error coram nobis claiming that the attorney who represented
him in 1991 was ineffective in that he failed to advise him
that entering the plea agreement would result in his
automatic deportation. The State filed a motion to dismiss
Defendant's petition and Defendant filed a response.

{5}
A hearing was held on the State's motion to dismiss and
on Defendant's claim of ineffective assistance of
counsel. Defendant and his daughter testified at the hearing.
Defendant claimed that, after his arrest in 1991 his attorney
told him that there was no evidence to convict him and that
he understood that to mean he would be set free. Defendant
also testified that his attorney gave him contrary advice by
telling him it would be difficult to win the case because it
was his word against the victim's word. Defendant
testified that his attorney never went over the charges with
him, he was never arraigned, and the terms of the plea
agreement were never explained to him. Defendant believed
that, if he signed the plea agreement and finished the
three-year probationary period, all of the charges would
"disappear" and his record would be clean.
Defendant stated that he did not know that deportation was
included in the agreement. He agreed that there was an
interpreter present at the plea hearing, but claimed that the
plea agreement was not read "word for word, " and
he was never told that the plea would subject him to
automatic deportation. Defendant filed an affidavit on July
10, 2014, stating that Mr. Sanchez told him he "needed
to enter a guilty plea" although he had told him he had
not committed the crime and had asked Mr. Sanchez to
investigate. His affidavit states that he was not advised
that the plea would subject him to automatic deportation, or
that by pleading guilty he would be facing certain
deportation.

{6}
The district court entered a letter ruling denying
Defendant's request to withdraw his plea based on an
illegal sentence and denied the State's motion to
dismiss. Nevertheless, the district court ruled that
Defendant made a prima facie showing of ineffective
assistance of counsel based on his affidavit, his testimony,
and the testimony of his daughter. An evidentiary hearing was
scheduled to determine whether Defendant should be allowed to
withdraw his plea.

{7}
At the evidentiary hearing, Defendant's attorney, Sam
Sanchez, testified that he had long discussions with
Defendant about the charges, the penalties, the consequences
of a plea, and the ramifications of a conviction. Mr. Sanchez
testified that Defendant was informed that if he was
convicted it would affect his immigration and naturalization
status and could prevent him from getting that status
"secured."

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;{8}
Following the evidentiary hearing, the district court issued
a second letter ruling finding that Mr. Sanchez'
representation was deficient and his deficient performance
prejudiced Defendant. The district court rejected
"[D]efendant's testimony as unreasonable that he did
not know that as a condition of his probation that he would
have to leave the United States for three years."
However, the district court also found that Defendant did not
understand that he would be ineligible to apply for legal
status or to be sponsored for citizenship by his daughter.
The district court concluded that Defendant should be able to
withdraw his plea. The letter ruling was incorporated into an
order, which included much of the contents of the letter
rulings. The ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.